At High Court, Wall Street Whips Main Street—Not Once but Twice

The United States Supreme Court Monday decided two of the most anticipated decisions of its current term. Each case generated some degree of unanimity among the justices. In each instance, the Court handed an important victory to corporate interests. And, in both rulings, the majority justified its result by asserting that the law does not easily allow a plaintiff--whether a person or a state, whether for monetary damages or to save the planet--to choose the means and manner of litigation. Monday surely was not a good day for the little guy on the American legal scene.

In Walmart v. Dukes, the Court ruled that a huge class action lawsuit against Walmart--based upon allegations of employment discrimination against female employees-- could not proceed in its broad current form. The claims against the company were too diverse and the questioned policies by Walmart's managers too disparate, Justice Antonin Scalia wrote for the Court's majority, to establish the "commonality" required for "class" status under the Federal Rules of Civil Procedure.

In American Elec. Power v. Connecticut, the closely-watched global warming case, the Court ruled that the Clean Air Act and environmental regulations precluded a so-called "public nuisance" lawsuit brought by several states to limit carbon dioxide emissions from huge power plants and the Tennessee Valley Authority. When Congress clearly creates a means to reduce such emissions, and when there is a regulatory scheme in place as well, Justice Ruth Bader Ginsburg wrote for the majority, "we see no room for a parallel track" based upon federal common law.

To Connecticut and the other states which had sought to use the courts to force the power companies to reduce their emissions, Justice Ginsburg said: "No, you have to fight this battle on Capitol Hill, through legislation, or through the rough and tumble of administrative law at the Environmental Protection Agency." To the 1.5 million potential Walmart plaintiffs, all of them women, Justice Scalia said: "No, you have to fight this battle on your own, individually and based upon your own specific allegations, and you cannot band together against the retail giant." Walmart had fought for this very result in this very case for 10 years.

It's hard to predict precisely how the Dukes opinion will impact class action litigation going forward--not every company is Walmart, of course--but it's clear that the Court's ruling will not help future plaintiffs when they try to join together to litigate their claims against corporate powerhouses. You could tell that by the gleeful emails sent out by tribunes of the corporate defense bar after Dukes was announced. Indeed, for general counsels all over the nation, you would have thought Monday was like Christmas and the Fourth of July wrapped into one.

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Source: The Atlantic